The right to privacy is constantly evolving. And that has implications in the workplace, particularly in provinces with workplace-specific privacy legislation such as British Columbia, Alberta and Quebec. Just how far employees' privacy rights extend is constantly at issue. Recently an arbitrator in Québec had to decide whether employees' privacy rights extended so far that they could object to their employer's decision to post their photos, together with their performance metrics, at their workstations. As the arbitrator set out in Syndicat des travailleuses et travailleurs de la Brasserie Labatt (CSN) et Brasserie Labatt du Canada (PDF - available in French only) the employees' privacy rights did not go that far - the employer was indeed able to post employees' photos at their workstations.
The case involved a beer production and distribution plant that is access-controlled. When hired, every plant worker is given a magnetic access card with his or her photo on it. The personalized access card allows entry to the plant and parking garage, and records hours worked.
In order to standardize the management systems of its companies worldwide, the employer implemented a continuous plant optimization program. Among other things, the program generates comparative information on individual plant, department and employee performance. The result? Individual employee performance indicators, including the employee's photo, were posted at employee work stations.
The union objected to the program on the grounds that it violated the right to privacy. In making its argument, the union alleged that the employer had failed to obtain express consent of the employees to use employee photos for such purposes.
The arbitrator did not agree with the union and dismissed the grievance. In doing so, she commented on three issues - management rights, employee consent and infringement of the right to privacy.
The arbitrator stated that an employer may implement policies and guidelines governing production and operational efficiency as part of its management rights. However, such policies must respect the collective agreement and comply with the applicable local laws.
Consent to the use of photographs
The arbitrator then dealt with the union's argument that the employer should have obtained the consent of its employees to use the photos taken when they were hired for the purpose of the new program. On that point, the arbitrator noted that initially the photos were taken by consent for employee identification purposes and to record individual hours worked. Those purposes, according to the arbitrator, were consistent with the purpose of the new program which was to assess work performance. Given that the purposes were consistent, the employer was not obligated to obtain fresh consent respecting the use of employee photos.
Right to privacy
The arbitrator did not end her analysis there. She went on to note that there is always a sphere of personal autonomy in the workplace, at least in Quebec. The arbitrator noted that the right to privacy (in Quebec) has three components:
- the right to anonymity;
- the right to solitude; and
- the right to secrecy and confidentiality.
In this case, the employer infringed none of these three rights:
- The employer did not infringe the right to anonymity because it did not circulate the photos publicly. An employee's workstation in a plant is not a public place.
- There was no infringement of the right to solitude because the employer's program related to plant productivity and established a continuous improvement production mechanism. The program did not involve individual or private employee choices.
- The program in no way affected employees' right to secrecy and confidentiality.
Needless to say, this decision is good for employers. And although it is a decision from Quebec, it is helpful to employers all across the country. The arbitrator's comments about management rights are helpful in all provinces. And the arbitrator's comments about employee consent are particularly helpful in jurisdictions with consent-based privacy legislation - such as Quebec, British Columbia, Alberta and Canada (for federally regulated employees). Finally, although not all jurisdictions recognize the rights of anonymity, solitude, secrecy and confidentiality, the arbitrator's comments are nonetheless useful since a program of general application did not affect such individual-based rights.